United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STATES DISTRICT COURT JUDGE.
Douglas Montgomery Liu moves this Court to vacate, set aside,
or correct his sentence, pursuant to 28 U.S.C. § 2255.
(Doc. 345.) Liu is a federal prisoner proceeding pro se.
Court must determine whether “the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief” before the United States is
required to respond. 28 U.S.C. § 2255(b); see
also Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts. A petitioner
“who is able to state facts showing a real possibility
of constitutional error should survive Rule 4 review.”
Calderon v. United States Dist. Court, 98 F.3d 1102,
1109 (9th Cir. 1996) (“Nicolas”)
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases). The Court should “eliminate the
burden that would be placed on the respondent by ordering an
unnecessary answer.” Advisory Committee Note (1976),
Rule 4, Rules Governing § 2254 Cases, cited in
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2255 Proceedings.
jury indicted Liu and five co-defendants on March 3, 2005, on
one count of conspiracy to commit a robbery affecting
interstate commerce, a violation of 18 U.S.C. § 1951(a)
(Count 1); one count of robbery affecting interstate
commerce, a violation of 18 U.S.C. §§ 1951(a) and 2
(Count 2); and one count of brandishing a firearm during and
in relation to the crime alleged in Count 1, a violation of
18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count 3).
fled to Mexico where he remained for approximately ten years.
Liu appeared in this Court on September 8, 2015, following
his extradition. See (Doc. 261). He pled guilty to
Count 1, the conspiracy count on November 2, 2015. The United
States agreed to dismiss Counts 2 and 3 and to recommend a
three-level reduction in the advisory guideline calculation
for acceptance of responsibility in exchange for Liu's
plea of guilty to Count 1 of the Indictment. (Doc. 273 at 2,
sentencing, the controlling guideline, U.S.S.G. § 2B3.1,
required application of the murder guideline because one of
Liu's co-defendants had stabbed and killed a man in the
course of the robbery. This required application bumped the
base offense level to 43. See U.S.S.G. §§
2B3.1(c)(1), 2A1.1(a); 18 U.S.C. § 1111(a) (defining
murder perpetrated in the course of committing robbery as
also received a two-level enhancement for obstruction of
justice to reflect Liu's flight to Mexico. The Court
granted a three-level downward variance in Liu's offense
level to recognize his acceptance of responsibility and
timely notification of plea. The total offense level was 42.
Liu earned a criminal history category of I. Liu's
advisory guideline range was 360 months to life in prison.
The statutory maximum of 20 years, or 240 months, superseded
the guideline range. See U.S.S.G. § 5G1.1(b);
(Doc. 292 at 1 § III.)
Court sentenced Liu on February 17, 2016, to serve 196 months
in prison, with three years of supervised release to follow.
(Docs. 290, 291 at 2-3.) Liu voluntarily dismissed his appeal
after having received a reduced sentence. See Order
at 1, United States v. Liu, No. 16-30054 (9th Cir.
Sept. 18, 2017).
conviction became final on December 17, 2017, at the
earliest. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his § 2255 motion on August 23,
2018. See 28 U.S.C. § 2255(f)(1); Houston
v. Lack, 487 U.S. 266, 276 (1988).
Claims and Analysis
Ineffective Assistance of Counsel
first alleges that his attorney violated his Sixth Amendment
right to the effective assistance of counsel when he failed
to challenge the ...